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Thursday, January 07, 2010

AG: Governor may issue posthumous pardons

Via Kimberly Reeves at the Quorum Report, I learned that Attorney General Greg Abbott issued his first opinion of 2010 in response to questions from state Sen. Rodney Ellis declaring that, contrary to his earlier assertions, Gov. Rick Perry has full powers under the Texas Constitution to issue posthumous pardons in cases like Timothy Cole's.

While such a pardon would require that the Governor seek a recommendation from the Board of Pardons and Parole, said the AG, the Perry has full power to issue pardons in all cases except impeachment or treason, with no other limitations.

The Governor had relied on an old AG opinion stating that posthumous pardons were impossible because a pardon must be "accepted," but this new opinion points out that since then the US Supreme Court called that stance "a legal fiction at best" and has not relied on the notion since 1833. In any event, Abbott said the "acceptance" requirement only made sense when pardons are "conditional" and does not apply in posthumous innocence cases.

Abbott also noted that the Texas Legislature had authorized compensation for false convictions "including a person who received a posthumous pardon," language which "appears to recognize the shift in United States Supreme Court precedent."

All this clears the way for Governor Perry to ask the Board of Pardons and Parole for a pardon recommendation for Timothy Cole, who was falsely convicted of rape and died in prison before DNA cleared his name last year. Cole's family has been adamant demanding the Governor pardon their departed relative, and with this opinion I see no reason that process wouldn't proceed.

UPDATE: I just got a call from Tim Cole's half-brother Cory Session, who informed me that Mary Ann Wiley from the Governor's office contacted him and his mother this morning to congratulate them on the opinion. Wiley told them Gov. Perry wanted to see the pardon happen as quickly as possible and to expect action in a matter of "weeks." Congratulations to Cory, his mother and the rest of Tim's family.

The issue had nothing to do with Tim Cole or posthumous pardons. Tim Cole's high profile pardon was lipstick on the pig of pardons for those that had completed the requirements of their deferred adjudication agreements.

This was the same tactic that was used to get the National Research University Fund in front of voters by tying it onto the bill for the eminent domain protections.

A deferred adjudication pardon is bogus because the case is ultimately dismissed. That there is any future punishment involved in a case of deferred adjudication is the fault of the legislature for making it a separate classification in a person's record.

The legislature wants to continue to punish people who enter into a deferred adjudication agreement after dismissal while allowing their politically connected friends to escape continued punishment.

"Sounds like the Governor did the right thing by waiting for appropriate legal authority. Quit trying to read anything else into it."

If the Governor truly was waiting for an opinion from the AG, he could have, you know, asked for one.

I mean, if it were me, I wouldn't just cite the reasons why I couldn't do what was asked of me, I'd call up my buddy, the AG, and say "can we get an updated opinion on this?"

Instead, Governor Perry held up his hands and said "I just can't do it. Can't be done." A member of the legislature had to ask the AG for an opinion.

(And, not to mention, that a governor who was actually interested in pardoning Tim Cole would've just done it rather than getting his staff to find reasons why he couldn't. If someone wanted to then challenge the legality of the pardon for the innocent man, that would be up to them to do it.)

This Governor has done everything he can to keep innocent people in prison and to keep facts and science out of the courtroom. I think he liked being able to hide behind the old AG opinion. But even if he didn't do we really want a Governor who lacks the bravery to do the right thing when confronted with the opportunity (or even the bravery to ask for an opinion from the AG)?

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